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12/12/88 the People of the State of v. Robert Charles Russell

December 12, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ROBERT CHARLES RUSSELL, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

531 N.E.2d 1099, 177 Ill. App. 3d 40, 126 Ill. Dec. 472 1988.IL.1785

Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Defendant was charged with knowingly committing an act of sexual penetration of complainant by the use of force and that in so doing he displayed a dangerous weapon. At trial defendant acknowledged that he engaged in sexual intercourse with complainant but testified that he did so with her consent. Defendant and complainant were the only occurrence witnesses, and her testimony was essentially as follows.

Complainant resided in Aurora with her boyfriend and their daughter and, after a quarrel on the night of June 9, 1986, she left at about 9 p.m. to go to a girlfriend's home. She and her friend, Debra Palmer, talked and complainant drank two beers until 12:15 a.m., when she left to return home. She did not go straight home but drove around, taking her time as she had much on her mind. At 12:30 a.m. she had stopped at a stop sign when a man she did not know, later identified as defendant, pulled open the passenger door and jumped into the car beside her. He held a knife to complainant's neck and ordered her to drive into the parking lot of a nearby car wash. For the next hour defendant talked to and threatened complainant while the two of them sat in the parked car.

Defendant then directed complainant, at knife point, to drive a few blocks to the Hillcrest Apartments and to park in a secluded area in back of the apartment complex near a dumpster. Defendant continued to talk to and threaten complainant with the knife and, after an unsuccessful attempt to sexually assault her in the car, he dragged complainant out of the passenger door and behind the car and threw her to the ground. The complainant testified that after a brief struggle, defendant subdued her by stuffing dirt into her mouth and attempting to choke her, then had sexual intercourse with her.

When defendant got up and walked away, complainant ran to a nearby apartment where she pounded on the door and screamed. The occupants let her in and called the police. While complainant said she had been confused and in shock, she thought she had told the responding police what had happened. On cross-examination, complainant denied that she had told the police she did not want to make a report, saying they never asked her about that. Complainant also denied telling any officer that there had not been a rape. She did recall telling the police that she only wanted them to take her to her car so she could go home and see her baby, and that she then drove home followed by two police officers, arriving at about 4 or 4:30 a.m.

Later that morning, at about 10 a.m., complainant went to the gas station where her friend Debra Palmer worked and told her what had happened; at Palmer's suggestion, she went to the hospital for an examination. At noon the following day, June 11, 1986, complainant was also interviewed by police sergeant Ronald Martin about the incident.

Other testimony relevant to the State's case was given by Ernestine Hutchins, a resident of the home where complainant sought shelter after the alleged assault. Hutchins said complainant had dirt and leaves on her back, was crying and shaking, and told her that a man had jumped into her car when she stopped for a stop sign, held her at knife point for three hours, and raped her. Over defendant's objections, Debra Palmer also was permitted to testify that complainant told her later that morning she had been raped and was allowed to relate most of the same details of the incident as those given by Hutchins. Sergeant Martin also testified that complainant told him during an interview that her assailant had introduced himself as Charles Russell and that she had identified a photograph of him. However, Martin went on to repeat complainant's account of the incident at great length and in considerably greater detail than had either Hutchins or Palmer. Martin also stated that he believed there were grass stains on the blouse complainant wore on the night of the claimed offense and later turned over to him as evidence. Nurse Weber testified that when she examined complainant later in the day of the occurrence, she observed a bruise on her left shoulder, an abrasion on her left arm, and a linear mark around her neck.

Defendant's testimony about the incident directly conflicted with that given by complainant. He stated that he had first met complainant approximately two years earlier and had seen her frequently in the neighborhood around the Hillcrest Apartment complex. They had often talked about complainant's problems with her boyfriend, as well as about her job and her little girl. According to defendant, he had sold marijuana to complainant four or five times in the past and, about three weeks before the alleged offense, he had taken $25 from complainant for purchase of the drug but had never delivered it to her.

Defendant testified that on the night in question he and David Jones were sitting in Jones' car in a parking lot when complainant approached them and asked about getting some marijuana. As she had only a little money, defendant offered to give her a joint of marijuana in return for sex, and complainant agreed. Defendant rode with complainant first to a car wash where defendant's car was parked, but they decided to stay in complainant's car and drove to the rear of the Hillcrest Apartments. Defendant testified that complainant undressed herself and they had sexual intercourse in the car. Later, complainant started to smoke the joint defendant had given her and on discovering that it was not marijuana she became angry, saying, "God damn you Charlie, I'm going to get even with you," and walked up the hill away from him. He started to follow her up the hill, yelling that he meant her no harm, but when he could no longer see her he walked back to his own car. Defendant denied complainant's allegations that he held her at knife point and forcibly sexually assaulted her.

Officer John Saltijeral, called as a defense witness, stated that he had spoken with complainant at the scene on the night of the incident and, although she had been hysterical and almost incoherent, in response to questions complainant said a black man had tried to rape her but did not do so. She also told the officer she did not want a report made on the incident and drove home, followed by the two officers, who did not make out a report of the incident. Another defense witness, Ernest Jones, corroborated part of defendant's testimony, stating that he and defendant were sitting in Jones' car in a parking lot prior to the time of the alleged rape when the complainant ...


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